State v. Clifford

• Decision Date: 20 March 1914
• Citation: 78 Wash. 555,139 P. 650
• Court: Washington Supreme Court
• Parties: STATE ex rel. MEYER v. CLIFFORD, Judge.

139 P. 650

78 Wash. 555

STATE ex rel. MEYER v. CLIFFORD, Judge.

Supreme Court of Washington

March 20, 1914

Department 1. Prohibition proceeding by the State, on the relation of William J. Meyer, against Miles L. Clifford, as Judge of the Superior Court of Pierce County. Alternative writ vacated.

Boyle, Brockway & Boyle, of Tacoma, for appellant.

Gordon & Easterday, of Tacoma, for respondent.

GOSE J.

This case is before us upon an alternative writ of prohibition. The essential facts are these: Frederick Meyer was divorced in Pierce county in 1880. The relator is a son of the divorced wife. In June, 1881, Meyer married a widow named Agnette Chambers, who had two children, a son and a daughter. On the 23d day of June, 1911, Meyer died. On the 24th day of December following, his widow Agnette died, leaving her surviving her son and daughter. In July, 1911, R. L Chambers, a son of Agnette Meyer, was appointed administrator of the estate of Frederick Meyer. The appraised value of the estate is $13,000. In September, 1913, the administrator filed a final report and petition, in which he denied the right of the children of the divorced widow, Louise Meyer, to inherit, and asserted the right of the heirs of Agnette Meyer to take the estate. Later Margaret Peterson, a daughter of Agnette Meyer, filed an affidavit to the effect that immediately prior to the marriage between Frederick Meyer and her mother, the former stated to her that 'he had no living issue, and that he never had had any.' She further states that 'it was common knowledge and common rumor' in the community where Frederick Meyer and his first wife Louise lived that none of the children born to Louise were the children of Frederick. At the same time the administrator filed his affidavit corroborating the affidavit of his sister Margaret, and stating further that his mother subsequent to her marriage with Frederick Meyer, told him that the children born to Louise were not the children of Frederick, and that Frederick 'in his early infancy' had been castrated and was wholly impotent. The affidavits of two physicians were filed in which they in substance stated that an examination of the body of Frederick ought to disclose 'with reasonable certainty' whether he had been castrated. Opposing affidavits of two physicians were also submitted. The relator submitted an affidavit which states that Frederick Meyer at all times acknowledged him as a son. The case was heard below upon the petition of the administrator for an order directing the exhumation of the body of Frederick Meyer, the affidavits to which reference has been made, and the admissions of counsel in open court; the relator contending that the court had no jurisdiction to make such an order. After a hearing the court announced that he would enter an order directing the exhumation of the body and directing that the body be examined by three physicians to be appointed. The relator thereupon sued out an alternative writ of prohibition. The respondent has filed a motion to quash the writ, upon the ground that the relator's remedy, if any, is by a writ of review, bringing up the entire record. He has also filed an answer, in which he affirmatively alleges that at the hearing, the relator being present in person and by counsel, 'it reasonably appeared from the evidence then and there introduced by the respective parties, the stipulations and admissions of counsel in open court, the statement of counsel as to what various parties would testify to if personally present or by way of affidavit, which matters by agreement of counsel were to be considered by the court as if actually testified to by such parties, and from the evidence then produced, that an exhumation and examination of the remains of said Frederick Meyer, deceased, might disclose and reveal, and therefore enable the production of, material evidence bearing on the issue pending in said court, over which affiant presides, * * * as to the legitimacy of the relator and other claimants, as children and heirs of the body of the said Frederick Meyer, deceased; and believing that said court possessed power and jurisdiction thereunto, and that the evidence so produced at said hearing made the case one calling for the exercise of said power and jurisdiction, this respondent announced that he would, and hereby declares it his purpose, unless prohibited by this honorable court, to make and enter an order similar in terms to that complained of by the relator herein, and sought to be prohibited by this proceeding.' We find no denial of this affirmative matter in the record. Other matter is pleaded by the relator going to the question of his heirship, which is put in issue by the answer and need not be considered. At the time of the hearing below, the estate was ready for final settlement and distribution.

The relator argues: (a) That the court was attempting to act without jurisdiction because the...